Citation Nr: 1123669
Decision Date: 06/22/11 Archive Date: 06/28/11
DOCKET NO. 10-46 546 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for chronic eczema with swelling, claimed as due to an undiagnosed illness.
ATTORNEY FOR THE BOARD
Scott Shoreman, Associate Counsel
INTRODUCTION
The Veteran had active service from December 1987 to December 1991.
This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).
The issue of service connection for chronic eczema with swelling, claimed as due to un undiagnosed illness, is herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required.
FINDINGS OF FACT
1. The competent and probative evidence of record preponderates against a finding that the Veteran has current bilateral hearing loss which is due to any incident or event in active service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after separation from service.
2. The competent and probative medical evidence of record preponderates against a finding that the Veteran has a current tinnitus disability which is due to any incident or event in active military service; and against a finding that tinnitus, as an organic disease of the nervous system, was manifested either during service or to a compensable degree within one year after separation from service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated by service, nor may sensorineural hearing loss, as an organic disease of the nervous system, be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2010).
2. Tinnitus was not incurred in or aggravated by service, nor may tinnitus, as an organic disease of the nervous system, be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none.
In April 2009 and August 2010 VA sent the Veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letters informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO.
The Board finds that the content of the letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the July 2009 rating decision and September 2010 SOC explained the basis for the RO's action, and the SOC provided him with an additional period to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.
The Board finds that the VA examination that the Veteran had for hearing loss and tinnitus were sufficient because the examiners supported their conclusions with analysis that can be weighed against the other evidence of record. Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.").
In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the August 2010 letter which VA sent to the Veteran.
Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.
II. Relevant Law, Factual Background, and Analysis
Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may be granted for a disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.
The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must (1) be medical evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Alternatively, service connection based on continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and
(3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as an organic disease of the nervous system (e.g., sensorineural hearing loss and tinnitus), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2010). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).
The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ." Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service.
The Veteran's service treatment records indicate that at his June 1987 enlistment examination, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
0
20
LEFT
5
0
0
15
0
The Veteran indicated on a June 1987 medical history report that he had no history of hearing loss.
At a December 1987 audiogram, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
-5
0
0
15
LEFT
0
0
-5
5
0
At a February 1990 audiogram, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
5
10
LEFT
5
5
5
10
0
At the Veteran's discharge examination in November 1991, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
5
5
0
LEFT
5
0
-5
5
0
He underwent a VA examination in January 2010, at which he complained of having hearing loss and ringing in both ears. He reported being exposed to firearms, machine guns, helicopters, and heavy artillery without hearing protection while in service. His post-service noise exposure was from a power lawn mower and other landscaping equipment, and hearing protection was used. The Veteran indicated having bilateral ringing in his ears a few times a week that began in February 2009. The tinnitus was noted to be bilateral and intermittent, and the examiner wrote that it is a subjective complaint with no objective means of documenting its presence or absence.
On the audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
10
5
5
LEFT
10
10
10
15
15
Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. On otoscopic examination the ears were normal. The Veteran was diagnosed with normal hearing and middle ear function.
In March 2010 the examiner reviewed the claims file and noted that the Veteran had normal hearing when he entered and left service, and that the STRs do not show any complaints of tinnitus. The examiner continued that a diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event. The Tinnitus Handbook, Tyler, 2000, was cited by the examiner. The examiner opined that military noise exposure did not cause hearing loss or tinnitus.
The record does not show that the Veteran has ever been diagnosed with hearing loss under the standard of 38 C.F.R. § 3.385. While a Board finding that the Veteran had the disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, in the present case there is no evidence showing that the Veteran has had cognizable hearing loss at any time since he filed his claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Therefore, the record does not show a current disability, and the claim for service connection for hearing loss must be denied. See Shedden, supra.
As for the claim of service connection for tinnitus, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
In this case, there is no dispute that the Veteran is competent to report symptoms related to his tinnitus, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, supra, at 470. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau, 492 F.3d at 1377, n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination.
There is a competent opinion of record from the VA examiner. She opined that the Veteran's tinnitus is not related to noise exposure during military service because noise-induced tinnitus requires a diagnosis of noise-induced hearing loss. The Board gives probative value to that opinion because the examiner provided a medical analysis to the significant facts of the case in order to reach her conclusion. See Nieves-Rodriguez, 22 Vet. App. at 304. Service connection based on continuity of symptomatology is not available because tinnitus was not noted during service and the Veteran reported first having tinnitus in February 2009, which was approximately 17 years after his discharge from active service. See 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 495-96. Moreover, any applicable presumption of service connection for tinnitus as an organic disease of the nervous system ran more than 18 years ago, long before any report of tinnitus by the Veteran.
We recognize the sincerity of the arguments advanced by the Veteran that his hearing loss and tinnitus are service connected. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, supra. However, hearing loss and tinnitus require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions on etiology.
Because the evidence preponderates against the claim of service connection for hearing loss and tinnitus, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.
ORDER
Service connection for hearing loss is denied.
Service connection for tinnitus is denied.
REMAND
For Persian Gulf War veterans, such as the Veteran in the current case, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2010); 38 C.F.R. § 3.317(a)(b) (2010).
For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i).
In addition, under section 3.317, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).
"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3).
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. Id.
In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
The STRs do not show that the Veteran was treated for or diagnosed with any skin disorders during service. In February 1999 the Veteran underwent a VA Persian Gulf Registry examination. He said that his primary concern was a persistent, nonpruritic red rash on the scalp that was also sometimes around his nose. The rash never involved the trunk or extremities. He had first noticed the rash in February 1991, and it occurred once a month for several days and then resolved spontaneously. He had never seen a dermatologist for the rash. The Veteran reported that during his service on Southwest Asia he was exposed to smoke from oil fires, fumes from tent heaters, secondhand cigarette smoke, and possible nerve gas during alarms. He did not eat or drink local food and water. The examiner noted that the Veteran did not have a rash on his face at the examination but that he did have an erythematous rash diffusely on his scalp and two soft nodes with one in each postauricular region. No frank pustules or discreet lesions could be appreciated, and there was mild acne on the shoulders and back. The examiner's assessment included a recurrent rash.
June 2003 treatment notes with Dr. A, a private allergist, indicate that the Veteran went to an emergency room the day before due to swollen lips, arms, hands, and the bottom of the feet. November 2005 treatment notes with Dr. N, a private general medicine physician, indicate that the Veteran had swollen lips, hands and feet. In April 2006 the Veteran returned for refills of Zyrtec and Singulair. September 2006 treatment notes with Dr. A indicate that the Veteran was doing well and did not have any swelling on his lips or face. The Veteran's medications were Prednisone, which he was to taper, Allegra, Zyrtec, and Zantac. In addition, the Veteran carried an EpiPen.
Dr. N wrote on an October 2008 United States Department of Labor Family and Medical Leave Act form that the Veteran had an acute/recurrent allergic syndrome, allergic rhinitis, eczema, hay fever, and chronic angioneurotic edema. Symptoms included swollen feet, hands, and face and difficulty breathing. Dr. N wrote that the Veteran's condition had begun in November 2005, and might have begun earlier or be a lifetime condition.
In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court of Appeals for Veterans Claims reviewed the criteria for determining when a VA examination is required by applicable regulation, and how the Board applies 38 C.F.R. § 3.159(c) (2009). In deciding whether a VA medical examination should be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
The Board finds that there is evidence that the Veteran has had chronic eczema with swelling and/or other skin disorders. However, it is not clear from the record to what extent they are due to a diagnosed disorder or to objective indications of an undiagnosed chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms that persisted for at least six months. Therefore, an examination in necessary before the claim can be decided on the merits.
Accordingly, the case is REMANDED for the following action:
1. Request that the Veteran provide any medical records relating to skin disorders or allergies, not already of record, or provide the identifying information and any necessary authorization to enable the RO to obtain such evidence on his behalf.
2. Schedule the Veteran for appropriate examination(s) to determine the nature and etiology of his skin disorder and allergies. The claims folder must be made available to any examiner for review in connection with the examination. All appropriate tests and studies and/or consultation(s) should be accomplished. After review of the Veteran's medical records, including private medical reports in the file, the examiner(s) should specifically state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any currently diagnosed skin disorder or allergies are related to the Veteran's active service. The examiner(s) should also indicate whether the Veteran has any skin disorders and/or allergies due to objective indications of an undiagnosed chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms that has persisted for at least six months.
a. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
b. If the examiner(s) cannot answer any question in the case without resorting to speculation, he/she should so state, and explain why that is so.
3. Thereafter, the RO should readjudicate the Veteran's claim for service connection for chronic eczema with swelling as due to an undiagnosed illness. If the benefits sought on appeal remain denied, the Veteran should be provided with an SSOC.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010).
____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs